Case 1:13-cv-11701-DJC Document 45 Filed 03/24/14 Page 1 of 17
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`CASPER, J.
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`I.
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`Introduction
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`Plaintiffs Small Justice LLC (“Small Justice”), Richard A. Goren (“Goren”) and
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`Christian Dupont d/b/a Arabianights-Boston Massachusetts (“Dupont”) (collectively, the
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`“Plaintiffs”) bring this action against Xcentric Ventures LLC (“Xcentric” or the “Defendant”)
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`arising from two posts made by Dupont on XCentric’s website. Xcentric has moved to dismiss
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`Counts III (libel), IV (intentional interference with prospective contractual relations) and V
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`(violations of Mass. Gen. L. c. 93A) of the First Amended Complaint (“Am. Compl.”) pursuant
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`to Fed. R. Civ. P. 12(b)(6). Xcentric also seeks dismissal without prejudice of Count I
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`(declaratory judgment as to ownership of copyright) and Count II (copyright infringement) for
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`lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). The Plaintiffs have now
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`moved pursuant to Fed. R. Civ. P. 12(c) for partial Judgment on the Pleadings on two of
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`Xcentric’s affirmative defenses: copyright ownership and immunity. For the reasons stated
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`SMALL JUSTICE LLC, et al.,
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`Plaintiffs,
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`v.
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`XCENTRIC VENTURES LLC,
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`Defendant.
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`__________________________________________)
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` Civil Action No. 13-cv-11701
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` March 24, 2014
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`MEMORANDUM AND ORDER
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`Case 1:13-cv-11701-DJC Document 45 Filed 03/24/14 Page 2 of 17
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`below, (1) the Defendant’s motion to dismiss, D. 14, is DENIED as to the copyright claims, but
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`is ALLOWED as to the libel and interference claims and is ALLOWED in part and DENIED in
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`part as to the c. 93A claim; and (4) the Plaintiffs’ motion for judgment on the pleadings, D. 20, is
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`DENIED.
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`II.
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`Factual Allegations and Procedural History
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`Unless otherwise noted, this summary is based upon the factual allegations in the
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`Amended Complaint. Xcentric, an Arizona company, operates a website called the Ripoff
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`Report which invites registered users to post complaints, called “reports,” about companies or
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`individuals. Am. Compl. ¶¶ 7, 8. On January 31, 2012, Dupont posted an allegedly defamatory
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`report about Goren’s conduct as an attorney and misconduct outside of his professional activities.
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`Id. ¶¶ 11, 12. On February 2, 2012, Dupont posted a second report echoing these allegations. Id.
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`¶ 16, 17. On March 7, 2012, Xcentric obtained a registration of copyright from the United States
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`Copyright Office entitled “Group Registration for an automated database titled Ripoff Reports
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`from January 1, 2012 to March 7, 2012 . . . .” Gringras Aff. Exh. B, D. 15-2.
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`In November 2012, Goren sued Dupont for libel and interference with advantageous
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`relations in Suffolk Superior Court. Am. Compl. ¶ 40. On February 28, 2013, the Superior
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`Court entered a default based upon Dupont’s failure to appear. Goren Second Aff. Exh. A-2, D.
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`29-2. On March 20, 2013, the Superior Court entered a judgment permanently enjoining Dupont
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`from publishing or republishing any of the January 2012 Report. Goren Second Aff. Exh. A-3,
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`D. 29-3 at 2. Upon Goren’s motion, on May 8, 2013, the Superior Court amended its judgment
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`to transfer ownership of the copyright of the January 2012 Report from Dupont to Goren. Goren
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`Second Aff. Exh. A-4, D. 29-4 at 2. That order also appointed Goren as attorney-in-fact for
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`Dupont, with the power to execute any assignment of the copyright in the January 2012 Report.
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`Id. at 3.
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`Case 1:13-cv-11701-DJC Document 45 Filed 03/24/14 Page 3 of 17
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`On May 14, 2013, Goren served the Superior Court judgment on Xcentric and demanded
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`that Xcentric remove the January 2012 Report from the Ripoff Report website, repeating his
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`demand on June 25, 2013. Am. Compl. ¶¶ 49, 50. On June 27, 2013, Xcentric replied to
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`Goren’s demand, asserting immunity to defamation claims as an internet service provider under
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`the Communications Decency Act, 47 U.S.C. § 230. Id. ¶ 51.
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`The Superior Court, at Goren’s subsequent request, amended its judgment again, this
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`time to encompass Dupont’s February 2012 Report. Am. Compl. ¶ 53. On August 16, 2013, the
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`Superior Court also ordered that “all rights in and to ownership of the copyright” by Dupont in
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`the Reports “are hereby transferred to . . . Goren, meaning and intending to convey, transfer and
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`assign . . . full and exclusive ownership of copyright in and to each work so as to qualify as a
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`transfer of ownership under . . . 17 U.S.C. §204.” Am. Compl. Exh. C, D. 13-3 at 3. Shortly
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`thereafter, Goren served Xcentric with the Superior Court’s August 16, 2013 Order and
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`demanded that Xcentric remove the February 2012 Report from its website. Am. Compl. ¶ 54.
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`On the same day, Goren, acting as attorney-in-fact for Dupont, executed a conveyance of the
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`copyrights in the Reports from Dupont to himself. Goren Aff. Exh. 1, D. 20-1. He subsequently
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`assigned his copyright ownership to Small Justice. Id.
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`On July 16, 2013, Goren and Small Justice initiated this lawsuit, suing Xcentric for
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`copyright infringement. D. 1. Goren and Small Justice then amended their Complaint, adding
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`Dupont as a plaintiff and stating five causes of action: declaratory judgment as to ownership of
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`the copyrights in the Reports (Count I); copyright infringement (Count II); libel (Count III);
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`intentional interference with prospective contractual relations (Count IV); and violations of
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`Mass. Gen. L. c. 93A (Count V). D. 13. Xcentric has now moved to dismiss the Amended
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`Complaint pursuant to Fed. R. Civ. P 12(b)(1) and (6), D. 14, and the Plaintiffs have moved for
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`Case 1:13-cv-11701-DJC Document 45 Filed 03/24/14 Page 4 of 17
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`judgment on the pleadings pursuant Fed. R. Civ. P. 12(c). D. 20. After a hearing on both
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`motions, the Court took the matter under advisement. D. 34.
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`III. Xcentric’s Motion to Dismiss Copyright Claims
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`A.
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`Standard of Review
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`Xcentric moves to dismiss Counts I and II, pertaining to copyright infringement, for lack
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`of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). For the Plaintiffs to establish
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`copyright infringement, they must show “(1) ownership of a valid copyright, and (2) copying of
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`constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
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`499 U.S. 340, 361 (1991); Motta v. Samuel Weiser, Inc., 768 F.2d 481, 483 (1st Cir.), cert.
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`denied, 474 U.S. 1033 (1985). Pursuant to 17 U.S.C. § 501(b), only “the legal or beneficial
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`owner of an exclusive right under copyright is entitled . . . to institute an action for any
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`infringement of that particular right committed while he or she is the owner of it.” Thus, only
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`the author of a copyrighted work or one who establishes ownership through a valid chain of title
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`has standing to sue for copyright infringement. Motta, 768 F.2d at 484. “Absent this showing, a
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`plaintiff does not have standing to bring an action under the Copyright Act.” Id. If the Plaintiffs
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`lack standing, this Court also lacks subject matter jurisdiction. See United States v. Union Bank
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`for Sav. & Inv., 487 F.3d 8, 22 (1st Cir. 2007).
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`When considering a 12(b)(1) motion on the “sufficiency” of the “jurisdictionally-
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`significant facts,” the Court “must credit the plaintiff’s well-pled factual allegations (usually
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`taken from the complaint, but sometimes augmented by an explanatory affidavit or other
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`repository of uncontested facts), draw[ing] all reasonable inferences from them in [plaintiff’s]
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`favor.” Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001). If the Defendants are
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`instead are challenging “the accuracy (rather than the sufficiency) of the jurisdictional facts
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`Case 1:13-cv-11701-DJC Document 45 Filed 03/24/14 Page 5 of 17
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`asserted by the plaintiff,” then “plaintiff’s jurisdictional averments are entitled to no presumptive
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`weight; the court must address the merits of the jurisdictional claim by resolving the factual
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`disputes between the parties.” Id.; see id. at 263 n. 3 (noting that “there is an exception to this
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`praxis for cases in which the jurisdictional facts, though genuinely disputed, are inextricably
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`intertwined with the merits of the case. In that event, the court may defer resolution of the
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`jurisdictional issue until the time of trial”).
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`B.
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`Copyright Conveyance from Dupont to Xcentric
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`The Plaintiffs allege that Small Justice, as the assignee of Goren, owns the copyrights in
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`the Reports and therefore Xcentric’s continued display of the Reports constitutes copyright
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`infringement. Am. Compl. ¶¶ 64-70. Goren purportedly acquired the copyrights as a result of
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`the Superior Court orders transferring ownership from Dupont and the assignments made by him,
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`as attorney in fact for Dupont, to himself. Am. Compl. ¶¶ 53, 55; Am. Compl. Exh. C, D. 13-3;
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`Goren Aff. Exh. 1, D. 20-1. Xcentric contends that it holds a valid Certificate of Registration
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`obtained from the United States Copyright Office establishing that it has exclusive rights to the
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`Reports. Def. Mem., D. 14 at 13; Gingras Aff. Exh. B., D. 15-2. Xcentric argues that, because
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`its ownership interest was registered before Goren allegedly acquired his conflicting transfer,
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`Xcentric’s interest prevails. Def. Mem., D. 14 at 15. For the reasons stated below, both parties’
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`motions, as they pertain to the copyright claims, are denied.
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` Before Xcentric posted Dupont’s Reports, Dupont had to complete a multi-step process.
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`Am Compl. ¶ 9, 10. On the last screen prior to submission, Dupont was presented with a box
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`with a scroll bar running down its side, entitled “Terms and Conditions.” Id. Beneath the
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`“Terms and Conditions” header was a subheading stating “1. Ripoff Report Membership Terms
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`Case 1:13-cv-11701-DJC Document 45 Filed 03/24/14 Page 6 of 17
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`& Conditions.” Am. Compl. Exh. A and B, D. 13-1 and 13-2. A portion of the information
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`contained beneath this subheading was visible on the screen, but no additional terms were visible
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`to a user unless the user scrolled through them. One of the terms not visible on the screen was
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`paragraph 6 entitled “Proprietary Rights/Grant of Exclusive Rights.” Id. That section read:
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`By posting information or content to any public area of www.RipoffReport.com,
`you automatically grant, and you represent and warrant that you have the right to
`grant, to Xcentric an irrevocable, perpetual, fully-paid, worldwide exclusive
`license to use, copy, perform, display and distribute such information and content
`and to prepare derivative works of, or incorporate into other works, such
`information and content, and to grant and authorize sublicenses of the foregoing.
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`Am. Compl. Exh. B., D. 13-2 at 2; Gingras Aff. ¶ 6.
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`Beneath the scrollable Terms and Conditions (the “TAC”) was a check box which
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`Dupont had to check before his Reports were posted. Am. Compl. ¶ 10. The text next to the
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`check box stated: “By posting this report, I attest this report/rebuttal is valid. I am giving Rip-
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`off Report irrevocable rights to post it on the website. I acknowledge that once I post my report,
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`it will not be removed, even at my request. . . .” Id. ¶ 10; Am. Compl. Exh. A, D. 13-1.
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`XCentric points out that users who do not agree to these terms are prohibited from posting any
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`content on its website. Gingras Aff. ¶ 6. There was no explicit requirement that users read
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`Xcentric’s TAC nor were users required to electronically check a box indicating that they had
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`done so. Am. Compl. ¶ 10; Am. Compl. Exh. A and B, D. 13-1 and 13-2. Without that express
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`assent, Plaintiffs argue, Dupont retained copyrights in the Reports. Pl. Mem., D. 21 at 16.
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`Whether paragraph 6 of the TAC, along with the language next to the check box, was
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`sufficient to transfer the copyrights in the Reports from Dupont to Xcentric depends on whether
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`it was reasonable to expect that Dupont would have understood he was conveying those rights to
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`Case 1:13-cv-11701-DJC Document 45 Filed 03/24/14 Page 7 of 17
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`Xcentric.1 Specht v. Netscape Comm’ns Corp., 306 F.3d 17, 31 (2d Cir. 2002) (opinion by
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`Sotomayor, J.) (applying test of whether “a reasonably prudent offeree in these circumstances
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`would have known of the existence of license terms”); see Craigslist Inc. v. 3Taps Inc., 942 F.
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`Supp. 2d 962, 973 (N.D. Cal. 2013) (“it is reasonable to infer that a Craigslist user would
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`understand that this ‘confirmation’ effected a transfer of rights” where users were confronted
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`with notice that clicking “continue” confirmed Craigslist as the “exclusive licensee of this
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`content”). Copyright transfer requires only a simple writing signed by the copyright owner. 17
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`U.S.C. § 204(a). A transfer of copyright ownership is not valid unless in writing and signed by
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`the owner of the rights conveyed, but “[n]o magic words must be included in the document”
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`which “doesn’t have to be the Magna Carta; a one-line pro forma statement will do.”2 3Taps,
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`942 F. Supp. 2d at 973 (quoting Radio Television Espanola S.A. v. New World Entm’t, Ltd., 183
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`F.3d 922, 927 (9th Cir. 1999)).
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`In Specht, the plaintiffs downloaded Netscape’s Communicator software from Netscape’s
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`website. Id. at 21. Before doing so, scrollable text of the license agreement was displayed to the
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`plaintiffs, and they could not complete installation until they had clicked on a “yes” button to
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`indicate their assent to the license terms, including a binding arbitration clause. Id. at 22. The
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`Second Circuit held that the arbitration clause was not enforceable, however, because it was not
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`1 The grant of an exclusive license is tantamount to the transfer of copyright ownership.
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`17 U.S.C. § 101 (defining “transfer of copyright ownership” to include an “exclusive license”).
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`2 The E-Sign Act, 15 U.S.C. § 7001, recognizes that the click of a button online can
`replace an actual signature. “Notwithstanding any statute, regulation or other rule of law . . .,
`with respect to any transaction in or affecting interstate or foreign commerce -- (1) a signature,
`contract or other record relating to such transaction may not be denied legal effect, validity or
`enforceability solely because it is in electronic form; and (2) a contract relating to such
`transaction may not be denied legal effect, validity or enforceability solely because an electronic
`signature or electronic record was used in its formation.” Id. at § 7001(a).
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`Case 1:13-cv-11701-DJC Document 45 Filed 03/24/14 Page 8 of 17
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`reasonable to hold users to the terms of another computer program the plaintiffs downloaded in
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`connection with, and prior to, Communicator. Id. at 30. That program, called SmartDownload,
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`had no such evident license terms. Id. at 23. SmartDownload’s license terms were visible only
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`if the plaintiffs scrolled down past the “Download” button that initiated installation of the
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`SmartDownload software. Id. Additionally, even if a user had scrolled down, he or she would
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`have had to click on an invitation to review the terms, then on another link to the full text of the
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`license agreement. Id. at 23-24.
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`The Plaintiffs seek to invoke federal jurisdiction, and, in the face of a Rule 12(b)(1)
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`challenge, they bear the burden of establishing standing. Conservation Law Found., Inc. v.
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`United States Envtl. Prot. Agency, No. 10-11455, 2013 WL 2581218, at * 5 (D. Mass. Aug. 29,
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`2013); Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995); Cummings v. Pearson Educ.,
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`Inc., No. Civ. A. 03-12183, 2004 WL 2830702, at * 1 (D. Mass. Dec. 6, 2004).
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`However, whether the Court considers XCentric’s Rule 12(b)(1) motion to be challenging
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`the sufficiency or the adequacy of the Plaintiffs’ jurisdictional averments, the Court cannot
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`resolve the issue of the ownership of the copyrights on the present record. Although the process
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`by which users posted to the Ripoff Report appears to be similar to the Communicator software
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`context in Specht, the Court cannot say, on this record now before it, what a reasonably prudent
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`offeree in Dupont’s position would have concluded about license. See Valentin, 254 F.3d 363 n.
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`3 (noting that the court may defer resolution of the jurisdictional issue where facts bearing upon
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`that issue are “genuinely disputed, [but] are inextricably intertwined with the merits of the
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`case”). Accordingly, the Court DENIES Defendant’s motion to dismiss Claims I and II without
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`Case 1:13-cv-11701-DJC Document 45 Filed 03/24/14 Page 9 of 17
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`prejudice and DENIES the Plaintiffs’ motion for Judgment on the Pleadings as it relates to
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`Xcentric’s affirmative defense of copyright ownership.3
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`IV. Xcentric’s Motion to Dismiss Claims for Libel and Intentional Interference with
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`Prospective Contractual Relations
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`A.
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`Standard of Review
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`When considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court
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`“must assume the truth of all well-plead[ed] facts and give the plaintiff the benefit of all
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`reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st
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`Cir. 1997).4 The plaintiffs must plead “enough facts to state a claim to relief that is plausible on
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`its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court will dismiss for
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`failure to state a claim if the pleadings lack “factual allegations, either direct or inferential,
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`respecting each material element necessary to sustain recovery under some actionable theory.”
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`Berner v. Delahunty, 129 F.3d 20, 25 (1st Cir. 1997), cert. denied, 523 U.S. 1023 (1998)
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`(quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988)). The Plaintiffs’
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`complaint must contain sufficient facts that, accepted as true, would allow this Court “to draw
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`the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
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`Iqbal, 556 U.S. 662, 678 (2009). Aside from the facts set forth in the complaint, exhibits
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`attached to the complaint are properly considered part of the pleading for purpose of Rule
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`3 In light of this ruling, the Court need not reach the Plaintiffs’ argument that Xcentric’s
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`copyright registration of a compilation was insufficient to register the component works as well
`because the registration omitted the names of the individual authors. D. 28 at 8. For the same
`reason, the Court also does not need to reach whether the Orders of the Superior Court and the
`subsequent assignments among the Plaintiffs are valid and enforceable transfers of the copyrights
`in the Reports. Am. Compl. ¶¶ 53-56.
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`4 The Court may also consider documents the authenticity of which is undisputed,
`documents central to the Plaintiffs’ claims and documents referred to in the Amended Complaint.
`Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993).
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`Case 1:13-cv-11701-DJC Document 45 Filed 03/24/14 Page 10 of 17
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`12(b)(6). Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir.), cert.
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`denied, 555 U.S. 995 (2008). In addition, “when a complaint’s factual allegations are expressly
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`linked to – and admittedly dependent upon – a document (the authenticity of which is not
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`challenged), that document effectively merges into the pleadings and the trial court can review it
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`in deciding a motion to dismiss under Rule 12(b)(6).” Id. (quoting Beddall v. State St. Bank &
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`Trust Co., 137 F.3d 12, 16-17 (1st Cir. 1998) (internal quotation marks omitted).
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`B.
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`Applicability of the Communications Decency Act, 47 U.S.C. § 230
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`The Plaintiffs allege that Xcentric’s online publication of Dupont’s defamatory posts
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`constitutes libel. Am. Compl. ¶ 72. Cognizant of Xcentric’s contention that it is immune to
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`defamation claims by virtue of the Communications Decency Act (the “CDA”), 47 U.S.C. § 230,
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`the Plaintiffs contend that the such statutory immunity is not available to Xcentric because of
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`Xcentric’s asserted ownership of the copyrights in the Reports. Id. The Plaintiffs also aver that
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`Xcentric has “intentionally caused these two defamatory per se publications to be prominently
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`and frequently featured on Google[] and other search engines . . . .” Am. Compl. ¶ 73.
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`Specifically, according to the Plaintiffs, Xcentric has caused the Reports “to be indexed by
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`Google and other search engines so as to maximize the number of hits or page views by search
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`engine users” through the use of “generally accepted internet industry-standard protocols,
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`including without limitation its uses of robots meta tag and so-called serving directives.” Id. ¶
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`37. For the reasons stated below, this Court concludes that CDA immunity applies and shields
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`Xcentric from all claims based on the Reports.
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`1.
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`CDA Immunity and Copyright Ownership
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`Section 230 of the CDA provides that “[n]o provider or user of an interactive computer
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`service shall be treated as the publisher or speaker of any information provided by another
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`Case 1:13-cv-11701-DJC Document 45 Filed 03/24/14 Page 11 of 17
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`information content provider.” 47 U.S.C. § 230(c)(1). To avail itself of such immunity, the
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`CDA imposes three requirements: (1) Xcentric must be a provider or user of an interactive
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`computer service (also called an “interactive service provider” or an “ISP”); (2) the Plaintiffs’
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`claim is based on information provided by another information content provider; and (3) the
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`claim would treat Xcentric as the publisher or speaker of that information. Universal Comm’n
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`Sys. v. Lycos, 478 F.3d 413, 418 (1st Cir. 2007).
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`The First Circuit has interpreted the CDA’s immunity broadly in light of the policy
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`concerns Congress sought to address with the statute. Id. at 419 (stating that, like other courts,
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`“we too find that Section 230 immunity should be broadly construed”). Specifically, the CDA
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`implements Congress’s “policy choice . . . not to deter harmful online speech through the . . .
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`route of imposing tort liability on companies that serve as intermediaries for other parties’
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`potentially injurious messages.” Id. at 418, quoting Zeran v. Am. Online, Inc., 129 F.3d 327,
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`330-331 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998) (alterations in original). The First
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`Circuit credited Congress’s concerns that intermediary tort liability would have a chilling effect
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`upon online speech, that the burden of separating lawful from unlawful speech was too great, and
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`that the actions of intermediaries who choose to actively screen content should be shielded from
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`liability. Id. at 418-19.
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`The issue before this Court is whether the second requirement imposed by the CDA –
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`that the information is provided by “another information content provider” – is met. Section 230
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`defines “information content provider” as “any person or entity that is responsible, in whole or in
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`part, for the creation or development of information provided through the Internet or any other
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`interactive computer service.” 47 U.S.C. § 230(f)(3). For CDA immunity to apply, the postings
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`“that form[] the basis for the state law claim[s] [must have] been provided by ‘another
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`Case 1:13-cv-11701-DJC Document 45 Filed 03/24/14 Page 12 of 17
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`information content provider.’” Lycos, 478 F.3d at 419 (emphasis in original). Importantly, “an
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`interactive computer service provider remains liable for its own speech.” Id. The Plaintiffs
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`contend that Xcentric’s asserted copyright ownership in the Reports transforms it from an
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`intermediary to the provider of the disputed content. Am. Compl., ¶¶ 72-74, 78; Pl. Mem., D. 21
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`at 3-4, 25-28. In other words, according to the Plaintiffs, Xcentric adopted the Reports as its
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`own speech, subjecting it to liability, because it holds itself out as the copyright owner. Id.
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`This Court rejects the argument that an ISP becomes an information content provider
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`when, assuming arguendo, it receives an exclusive license to the content posted by a third party.
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`The Plaintiffs cite no authority that has held that an ISP adopts content by virtue of its copyright
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`ownership. Courts that have addressed the adoption issue have held that an ISP is not a content
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`provider unless it specifically encourages the development of the offensive content. Fed. Trade
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`Comm’n v. Accusearch Inc., 570 F.3d 1187, 1201 (10th Cir. 2009) (holding immunity
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`unavailable where defendant paid researchers to acquire confidential content); Fair Hous.
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`Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1165-66 (9th Cir.
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`2008) (withholding CDA immunity where website induced users to create illegal housing
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`preferences based on protected characteristics by requiring answers to its own questionnaire);
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`Jones v. Dirty World Ent. Recordings, LLC, 840 F. Supp. 2d 1008, 1011-12 (E.D. Ky. 2012)
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`(deeming website a content provider where it specifically encouraged defamatory content by,
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`inter alia, adding its own comments to postings); see Parisi v. Sinclair, 774 F. Supp. 2d 310, 316
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`(D.C. 2011) (declining to withhold CDA immunity because bookseller merely reposted
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`defamatory promotional statements and stating that “it would be contrary to the purpose of the
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`CDA, which sought to encourage the vibrant and competitive free market of ideas on the Internet
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`by establishing immunity for internet publication of third-party content[,] to require a fact-based
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`Case 1:13-cv-11701-DJC Document 45 Filed 03/24/14 Page 13 of 17
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`analysis of if and when a defendant adopted particular statements and revoke immunity on that
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`basis”) (internal citation and quotation marks omitted). Here, Xcentric’s acquisition of an
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`exclusive license to the content (if the record ultimately shows that it did acquire such a license)
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`is an insufficient level of involvement in the development of the content to nullify CDA
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`immunity.
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`2.
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`CDA Immunity and Alleged Re-publication on Search Engines
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`The Plaintiffs further attempt to circumvent the CDA by arguing that Xcentric surrenders
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`its immunity by “instruct[ing] search engines to make copies of the two works under color of
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`Xcentric’s claimed exclusive ownership of the works and also authoriz[ing] Google and the other
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`search engines to display those cached copies.”5 D. 28 at 11. The Plaintiffs acknowledge that
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`“Xcentric’s instructions to the search engines are designed to maximize the number of times each
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`of the two works is listed on Google’s index so as to maximize the number of hits or page views
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`by search engine users.” Pl. Mem., D. 21 at 8. The Plaintiffs aver that by instructing Google to
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`use, or at least by not precluding Google from using, its automated program to acquire cached
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`copies of the Reports, Xcentric adopts the content of the Reports as its own and causes it to be
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`republished on Google’s website. D. 21 at 7-9.
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`As discussed above, the CDA grants immunity to ISPs that passively display content
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`created by third parties, but ISPs are subject to liability for content created by them. See Lycos,
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`478 F.3d at 419. This Court concludes that the alleged conduct does not rise to the level of the
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`                                                            
`5 The Plaintiffs cite Field v. Google, Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006), to
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`explain the technology by which Google acquires cached copies of the Reports. Google uses an
`automated program to “crawl across the Internet” and to locate, analyze and catalog web pages,
`thereby making them searchable to a user of the Google search engine. Id. at 1110. “As part of
`this process, Google . . . stores the HTML code from those pages in a temporary repository
`called a cache. Once Google indexes and stores a [w]eb page in the cache, it can include that
`page . . . in the search results it displays to users in response to their queries.” Id. at 1110-11.  
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`Case 1:13-cv-11701-DJC Document 45 Filed 03/24/14 Page 14 of 17
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`“creation or development of information” that would render Xcentric an “information content
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`provider” under the CDA. 47 U.S.C. § 230(f)(3). The Plaintiffs do not allege that Xcentric
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`augments or changes the content of the Reports in any way before they are cached on Google’s
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`servers. See Roommates, 521 F.3d at 1174-75 (stating that CDA immunity is lost only where “it
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`is very clear that the website directly participates in developing the alleged illegality” and noting
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`that tacit assent to the conduct of third parties is not sufficient to strip immunity). The Plaintiffs
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`also appear to concede that Xcentric’s alleged actions are undertaken with the goal of
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`maximizing the number of times the Ripoff Report appears among Google’s search results.
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`However, merely endeavoring to increase the prominence of Xcentric’s site among Google’s
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`search results does not make Xcentric an information content provider under the CDA. See Asia
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`Econ. Inst. v. Xcentric Ventures LLC, No. CV-10-01369 SVW PJWX, 2011 WL 2469822 at *6
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`(C.D. Cal. May 4, 2011) (holding that CDA immunity applied where defendant added indexing
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`tags to increase the prominence of its web pages in internet searches because “[i]ncreasing the
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`visibility of a statement is not tantamount to altering its message”).
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`Because immunity under the CDA shields Xcentric from claims based on its publication
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`of the Reports, the Plaintiffs’ claims for libel and tortious interference are barred. Therefore
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`Xcentric’s motion to dismiss Claims III and IV is ALLOWED and the Plaintiffs’ motion for
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`judgment on the pleadings as it relates to Xcentric’s assertion of CDA immunity is DENIED.
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`V.
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`XCentric’s Motion to Dismiss the Chapter 93A Claim
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`Mass. Gen. L. c. 93A § 11 provides a private cause of action to “[a]ny person who
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`engages in the conduct of any trade or commerce and who suffers any loss of money or property,
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`real or personal, as a result of the use or employment by another person who engages in any
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`trade or commerce of an unfair method of competition or an unfair or deceptive act or practice
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`Case 1:13-cv-11701-DJC Document 45 Filed 03/24/14 Page 15 of 17
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`declared unlawful by section two . . . .” The referenced section two broadly proscribes “[u]nfair
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`methods of competition and unfair or deceptive acts or practices in the conduct of any trade or
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`commerce . . . .” Id. § 2(a).
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`The Plaintiffs’ allegations that Xcentric violated c. 93A boil down to three claims: (1)
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`that Xcentric’s continued display of the Reports, coupled with its asserted copyright ownership
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`in the Reports, constitute unfair and deceptive business practices, Am. Compl. ¶ 85; (2) that
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`Xcentric’s assertions of CDA immunity prior to the commencement of this suit, both in its e-mail
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`communications with Goren and in its refusal to comply with the Superior Court injunction,
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`were unfair and deceptive, Am. Compl. ¶¶ 49-51, 86; Gingras Aff. Exh. B., D. 15-7; and (3) that
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`Xcentric’s solicitation of victims of defamatory reports to participate in its fee-based Corporate
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`Advisory Program (“CAP”) and VIP Arbitration program is oppressive and unethical. Pl. Mem.,
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`D. 21 at 22; Am. Compl. ¶¶ 33-35. According to the Amended Complaint, Xcentric directs
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`advertisements to injured parties offering to help them achieve positive search engine listings
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`when they pay to become members of the CAP. Am. Compl. ¶ 34. The VIP Arbitration
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`program invites victims of defamatory reports to pay to submit the matter to Xcentric’s
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`arbitration process. Id. ¶ 35. Though Xcentric will not remove the offending reports as a result
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`of such process, redaction of falsehoods appears to be a possible outcome. Id. For the reasons
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`stated below, this Court dismisses the first two bases of the Plaintiffs’ c. 93A claim, but finds the
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`remaining portion of the c. 93A claim is sufficiently pled.
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`As to Xcentric’s continued display of the Reports, its refusal to strike the Reports from
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`the Ripoff Report website was within its discretion as an